Illegal working: when an employee loses the right to work in the UK

An employer that discovers that an employee no longer has the right to work in the UK, or that immigration permission is due to expire, needs to take action to avoid criminal and civil penalties.

Clio Springer sets out six key steps to reduce the risks when an employee loses the right to work in the UK.

1. Minimise the risk of illegal working

Employers need to limit the risk of illegal working in the first place by carrying out a right-to-work check on all recruits.

Where an individual has a time-limited right to work in the UK, the employer needs to carry out follow-up checks.

By carrying out checks, employers can identify restrictions on working and monitor when immigration permissions are due to expire, in good time to deal with this situation.

There is also a “statutory excuse” against civil liability for illegal working if the proper checks are carried out.

Specific documents must been seen, and a copy kept, to verify the right to work.

• Minimising the risk of illegal working
• Documentation acceptable as proof of right to work in the UK – indefinite right to work in the UK (list A)
• Documentation acceptable as proof of right to work in the UK – limited right to work in the UK (list B)

2. Be aware that employees may lose the right to work in the UK

An employee can lose the right to work in the UK for a number of reasons. For example:

• the original immigration permission might have expired or be about the expire;
• the employer or employee might have breached the employee’s immigration permission, resulting in it being revoked;
• the employer might have lost its tier 2 sponsor licence; or
• there might have been a TUPE transfer to an employer that does not have a sponsor licence.

It is also possible that an employer realises that an employee never had the right to work for it in the first place. For example, the employer could discover that proper checks were not carried out when the employee was recruited.

• Why a foreign national might lose the right to work in the UK

3. Deal with the situation

If an employer finds that an employee no longer has the right to work in the UK (or never had the right), it needs to take action, or be at risk of incurring civil and criminal penalties.

Many employers will consider that termination is their only option.

However, employers need to avoid a knee-jerk reaction and follow a proper process.

4. Limit the risk of unfair dismissal and discrimination claims

If the employee has sufficient service, he or she will be able to claim unfair dismissal if the employer terminates the contract. A suspicion that it would be illegal to continue to employ the individual is unlikely to be sufficient to show that the dismissal was fair, without further investigation.

An employer that dismisses an employee in these circumstances, could also be liable for a race discrimination claim.

• The risk of an unfair dismissal claim
• When an employer’s actions could constitute race discrimination

5. Follow a fair process

Where an employee no longer has, or will soon no longer have, the right to work in the UK (for example, the immigration permission is due to expire), the employer needs to establish the facts about his or her immigration status.

To minimise the risk of a successful unfair dismissal or race discrimination claim, the employer should consider all the options before making a decision.

There may be an alternative to dismissal (such as continued employment via a different immigration category).

The nature and length of the process will depend on the reason for the immigration permission ending.

Where a visa is due to expire on a set date and the employer has been monitoring employees’ immigration permissions, it will be able to meet the employee well in advance to discuss all the options.

However, if a visa is revoked, there may be very little warning or time to investigate.

• Following a fair process if an employee’s immigration status changes

6. Make use of the 28-day grace period and employer checking service

A 28-day grace period from when an immigration permission expires, applies in limited circumstances. During this time continued employment is lawful.

If the grace period applies, the employer should take advantage of this 28-day period to carry out or continue its investigation into the options available.

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It can also use the Home Office employer checking service, where the employee is unable to provide relevant documents because his or her current permission has expired and a new application is pending.

There may be an extension of time during which the employee has the right to work, allowing the employer to carry on its investigation.

• The 28-day grace period when immigration permission expires
• The Home Office’s online checking service for employers